Sharps and Jordan v. United States

• Court: District of Columbia Court of Appeals
• Decided: March 11, 2021
• Docket: 20-CO-554 & 20-CO-608
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 20-CO-554 & 20-CO-608

GREGORY D. SHARPS AND LANDRELL L. JORDAN, JR., APPELLANTS,

V.

UNITED STATES, APPELLEE.

Appeals from the Superior Court of the District of Columbia (CF3-12783-19 & CF1-4480-20)

(Hon. Neal E. Kravitz, motion judge in No. 20-CO-554; Hon. Ronna L. Beck, motion judge in No. 20-CO-608)

(Argued December 15, 2020 Decided March 11, 2021)

Carrie Weletz for appellant Sharps.

Mikel-Meredith Weidman, Public Defender Service, with whom Samia Fam and Jaclyn Frankfurt, Public Defender Service, were on the briefs, for appellant Jordan and for Public Defender Service, amicus curiae, in support of appellant Sharps.

Mark Hobel, Assistant United States Attorney, with whom Michael R. Sherwin, Acting United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello, Felice Roggen, John P. Mannarino, Amy Zubrensky, and Kathleen Kern, Assistant United States Attorneys, were on the briefs, for appellee.

Before GLICKMAN and BECKWITH Associate Judges, and NEBEKER Senior Judge. 2

Opinion for the court by Associate Judge GLICKMAN.

Dissenting opinion by Associate Judge BECKWITH at page 41.

GLICKMAN, Associate Judge: Gregory Sharps and Landrell Jordan appeal

orders in their separate criminal cases denying their motions for release from pretrial

detention. We consolidated the appeals because they present identical legal

challenges to the emergency authority exercised by the Chief Judge of the Superior

Court under D.C. Code § 11-947 (2020 Supp.) to extend the duration of permissible

pretrial detention in response to the disruption of normal court operations by the

COVID-19 pandemic.

Appellants were detained pending trial in accordance with the requirements

of D.C. Code § 23-1322 (2020 Supp.). That statute authorizes pretrial detention only

for a limited time period—presumptively up to 100 days, though the court may

extend that period of detention for good cause shown. A detainee not brought to

trial within the maximum period of detention is entitled to be released pending trial. 1

Appellants both have been held for longer than 100 days without trial. Despite that,

they, and other similarly situated defendants, continue to be held while they await

their trials. They remain detained past the 100-day mark due to deadline-tolling

1 See D.C. Code §§ 23-1322(h), -1321(a). 3

orders issued under the authority granted by § 11-947 when an emergency requires

the Superior Court to be closed or otherwise renders compliance with legal deadlines

“impracticable.” 2 Section 11-947 specifies that the scope of this emergency

authority to toll legal deadlines “extends to all laws and rules affecting criminal . . .

proceedings,” including laws affecting “pretrial” procedures. 3

Appellants seek relief from this court on either statutory or constitutional

grounds. They argue that the emergency deadline-tolling authority granted by § 11-

947 is inapplicable to their pretrial detention; this is a question of statutory

construction. Alternatively, appellants argue that if we construe § 11-947 as

authorizing the emergency prolongation of pretrial detention, then the statute

unconstitutionally denies them substantive and procedural due process, on its face,

or as applied. The United States disagrees with each of the foregoing contentions.

We reject appellants’ arguments and affirm the denials of their motions for

release.

2 D.C. Code § 11-947(a)(1). 3 Id. § 11-947(a)(2)(B). 4

I.

The COVID-19 pandemic has severely disrupted the Superior Court’s normal

operations since March 2020, when Mayor Bowser first declared a public health

emergency. 4 That emergency remains in effect at the time of this writing. The

highly contagious nature of the novel coronavirus that causes COVID-19 has forced

the suspension of in-person jury trials in courts across the country, as well as in the

District, 5 due to the risk of transmission that accompanies these proceedings. 6

In 2011, the District of Columbia Courts foresaw the need for express legal

authority to toll or delay judicial deadlines in the event a terrorist attack or other

emergency prevented the courts from conducting trials and other court proceedings.

Congress responded to this concern the following year by adding § 11-947 to the

4 Mayor Bowser Declares Public Health Emergency, GOVERNMENT OF THE DISTRICT OF COLUMBIA (March 11, 2020), https://mayor.dc.gov/release/mayor- bowser-declares-public-health-emergency https://perma.cc/KV82-SJSW. 5 Courts Suspending Jury Trials as COVID-19 Cases Surge, UNITED STATES COURTS (Nov. 20, 2020), https://www.uscourts.gov/news/2020/11/20/courts- suspending-jury-trials-covid-19-cases-surge https://perma.cc/FG8M-XRC2. 6 Scientific Brief: SARS-COV-2 and Potential Airborne Transmission, CENTERS FOR DISEASE CONTROL AND PROTECTION (Oct. 5, 2020), https://www.cdc.gov/coronavirus/2019-ncov/more/scientific-brief-sars-cov-2.html https://perma.cc/X4A7-96Z8. 5

District of Columbia Code. Section 11-947 furnishes the Chief Judge of the Superior

Court (S.C.C.J.) with the authority to extend deadlines “[i]n the event of a natural

disaster or other emergency situation requiring the closure of Superior Court or

rendering it impracticable for the United States or District of Columbia Government

or a class of litigants to comply with deadlines imposed by any Federal or District

of Columbia law or rule that applies in the Superior Court[.]” 7 The Senate

Committee Report on this legislation specifically anticipated that an outbreak of life-

threatening disease could be the kind of event that would create an “emergency

situation” calling for exercise of the authority granted by § 11-947. 8

Subsection (a)(2) describes the “scope” of the emergency tolling authority

vested in the S.C.C.J. as follows:

(A) The chief judge may enter such order or orders as may be appropriate to delay, toll, or otherwise grant relief from the time deadlines imposed by otherwise applicable laws or rules for such period as may be appropriate for any class of cases pending or thereafter filed in the Superior Court.

7 See D.C. Courts and Public Defender Service Act of 2011, Pub. L. No. 112- 229, §2(b), 126 Stat. 1611, 1611-12 (2012); D.C. Code § 11-947(a)(1); S. Rep. No. 112-178, at 3 (2012). 8 Id. at 4 (“Examples of emergency situations are explosions, acts of terrorism, enemy attacks, sabotage, disease, or another manmade cause that results in an imminent threat, severe damage, or injury to life or property.”). 6

(B) The authority conferred by this section extends to all laws and rules affecting criminal and juvenile proceedings (including, pre-arrest, post-arrest, pretrial, trial, and post-trial procedures) and civil, family, domestic violence, probate and tax proceedings.[9]

The only explicit statutory limitation on the scope of the S.C.C.J.’s emergency

authority is the proviso that “[n]othing in this section shall be construed to authorize

suspension of the writ of habeas corpus.” 10

To ensure that the “emergency authority [is] used sparingly and only in

extraordinary circumstances,” 11 § 11-947 provides that orders tolling or extending

deadlines beyond fourteen days require the consent of the D.C. Courts’ Joint

Committee on Judicial Administration 12 and must be reported to Congress. The

9 In exercising emergency authority to toll deadlines in criminal cases, the S.C.C.J. is directed to “consider the ability of the United States or District of Columbia Government to investigate, litigate, and process defendants during and after the emergency situation, as well as the ability of criminal defendants as a class to prepare their defenses.” D.C. Code § 11-947(b). 10 Id. § 11-947(a)(4). 11 S. Rep. No. 112-178, at 4 (2012). 12 D.C. Code § 11-947(d)-(g). The Joint Committee on Judicial Administration consists of the Chief Judge and two associate judges of the Superior Court and the Chief Judge and one associate judge of the Court of Appeals. Id. § 11- 1701(a). The Joint Committee has overarching statutorily specified responsibilities 7

Congressional reports must describe the reasons for the orders, their duration, their

effects on litigants, and their costs to the court. 13

With the Joint Committee’s consent, the S.C.C.J. has exercised the emergency

authority granted by § 11-947 in response to the COVID-19 pandemic. On March

18, 2020, the S.C.C.J. issued the first in a series of deadline-tolling orders; it tolled

“all deadlines and time limits in statutes, court rules, and standing and other orders

that would otherwise expire before May 15, 2020.” 14 On May 14, 2020, the S.C.C.J.

issued a similar order effective through June 19, 2020. 15 This order made it explicit

that the suspension applied to time limits under the pretrial detention statute, D.C.

Code § 23-1322, among other statutory time limits. 16 Since then, the S.C.C.J. has

for the administration of the District of Columbia court system. See id. § 11- 1701(b)-(d). 13 Id. § 11-947(f). 14 Superior Court of the District of Columbia Order (Mar. 18, 2020), https://www.dccourts.gov/sites/default/files/Order-Attachment-PDFs/Order-3-19- 20.pdf https://perma.cc/7Q98-F8C7. 15 Superior Court of the District of Columbia Order (May 14, 2020), https://www.dccourts.gov/sites/default/files/matters- docs/General%20Order%20pdf/Amended-Order-5-14-20.pdf https://perma.cc/6RXQ-K9H4. 16 Id. 8

(as of this writing) issued four substantially similar orders, the most recent of which

tolls deadlines at least until March 31, 2021. 17

The Superior Court’s Criminal Division has announced plans to schedule

trials for pretrial detainees after that date. On January 15, 2021, the Criminal

Division published a notice of its intent to resume jury trials in non-violent felony

cases in which the defendant is detained pursuant to § 23-1322(b), except for sex

offense cases. For all such defendants, the Division anticipates an upcoming trial

readiness hearing at which “a trial date will be set at least sixty days in advance on

or after March 22, 2021.” 18 The notice goes on to state that “[t]he Criminal Division

17 See Superior Court of the District of Columbia Order (June 19, 2020), https://www.dccourts.gov/sites/default/files/matters- docs/General%20Order%20pdf/Amended-Order-6-19-20-FINAL.pdf https://perma.cc/HTX9-SJQ8 (tolling deadlines through August 14, 2020); Superior Court of the District of Columbia Order (Aug. 13, 2020), https://www.dccourts.gov/sites/default/files/matters- docs/General%20Order%20pdf/Amended-Order-8-13-20-FINAL.pdf https://perma.cc/UM3D-L35K (tolling deadlines through Nov. 9, 2020); Superior Court of the District of Columbia Order (November 5, 2020), https://www.dccourts.gov/sites/default/files/matters- docs/General%20Order%20pdf/Amended-Order-11-5-20 FINAL.PDF https://perma.cc/6FLV-F5QV (tolling deadlines through January 15, 2021); Superior Court of the District of Columbia Order (Jan. 13, 2021), https://www.dccourts.gov/sites/default/files/matters- docs/General%20Order%20pdf/Amended-Order-1-13-21 FINAL.PDF https://perma.cc/929J-UVJG (tolling deadlines through March 31, 2021). 18 Notice of Intent to Resume Criminal Division Jury Trials in Felony 2 Cases Previously Set for Trial in Which Defendant is Detained Pursuant to D.C. Code 23- 9

has undertaken to identify all cases previously set for a jury trial in which the

defendant remains detained and has prioritized, to the extent practicable, the setting

of trial readiness hearings in such cases based upon length and statutory basis of

detention.” 19

II.

Appellants are being held for trial pursuant to a pretrial detention statute

originally enacted by Congress in 1970.20 Its current provisions governing the time

limits on detention date back to 2001, 21 and so were on the books when Congress

1322 (b) (Jan. 15, 2021), https://www.dccourts.gov/sites/default/files/Notice-of- Intent-to-Resume-Felony-2-Jury-Trials.pdf https://perma.cc/HL5F-KH74. Trial dates will be “contingent upon no further restrictions on governmental operations being imposed in the District of Columbia . . . , the approval of the District of Columbia Department of Health, and the ability to summon jurors and conduct trials in a manner consistent with public health and the safety of all participants and the due process rights of the defendant.” Id. 19 Id. While § 23-1322 sets a limit on the duration of pretrial detention imposed under that statute, another pretrial detention statute, D.C. Code § 23-1325 (which provides for pretrial detention of defendants charged with murder or assault with intent to kill while armed) contains no durational limitation. 20 District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L. No. 91-358, 84 Stat. 644. 21 See Bail Reform Act of 2000, D.C. Law 13-310, § 2(b)(3), 48 D.C. Reg. 1648, 1649 (amending D.C. Code § 23-1322(h), effective June 12, 2001). 10

enacted § 11-947. D.C. Code § 23-1322(b) provides that, in specified criminal

cases, 22 the defendant shall be detained before trial if the court finds by clear and

convincing evidence that “no condition or combination of conditions [of release]

will reasonably assure the appearance of the person as required, and the safety of

any other person and the community.” 23 The statute further provides that,

“consistent with the sound administration of justice,” a defendant who is detained

pretrial “shall have trial of the case commence before the expiration of 100 days.” 24

For “good cause shown,” however, the court may extend the period of authorized

detention in twenty-day increments “for the additional time required to prepare for

the expedited . . . trial of the person.” 25 There is no statutory limit on the number of

twenty-day extensions the court may grant for good cause. 26 Section 23-1322(h)(1)

22 See § 23-1322(b)(1) (2020 Supp.). 23 § 23-1322(b)(2). 24 § 23-1322(h)(1). In computing the 100 days, certain periods of time are excluded, including any period in which the defendant is, for any reason, “unavailable for trial.” § 23-1322(h)(4)(D). 25 § 23-1322(h)(1). 26 Prior to its amendment in 2001, the statute allowed only a single twenty- day extension of pretrial detention for good cause shown. D.C. Code § 23- 1322(h)(1) (2000). The Bail Reform Act of 2000, however, amended subsection (h) to permit the court to grant one or more extensions of the 100-day period of pretrial detention for good cause shown. Id. at § 2(b)(3) (effective June 12, 2001). 11

provides some examples of circumstances constituting good cause, but states that

good cause “is not limited to” those examples. 27 A defendant who is not brought to

trial within the maximum period of detention allowed under the statute is entitled to

be released pending trial on appropriate conditions set by the court. 28

Appellants Jordan and Sharps are detained pending trial pursuant to § 23-

1322(b). Mr. Jordan, who was arrested in May 2020, is charged with first-degree

sexual abuse while armed, and other offenses. He is alleged to have followed the

complainant on the street late one night in January 2006, forced her into an alley at

gunpoint, robbed her, and compelled her to perform oral sex. Mr. Jordan was not

27 Id. (“Good cause may include, but is not limited to, the unavailability of an essential witness, the necessity for forensic analysis of evidence, the ability to conduct a joint trial with a co-defendant or co-defendants, severance of co- defendants which permits only one trial to commence within the time period, complex or major investigations, complex or difficult legal issues, scheduling conflicts which arise shortly before the scheduled trial date, the inability to proceed to trial because of action taken by or at the behest of the defendant, and agreement between the government and the defense to dispose of a case by a guilty plea on or after the scheduled trial date, or the breakdown of a plea on or immediately before the trial date[.]”). 28 § 23-1322(h)(3) (“After 100 days, as computed under paragraphs (2) and (4) of this section, or such period or periods of detention as extended under paragraph (1) of this section, the defendant shall be treated in accordance with § 23- 1321(a) unless the trial is in progress, has been delayed by the timely filing of motions, excluding motions for continuance, or has been delayed at the request of the defendant.”). 12

identified as the perpetrator until April 2020, when forensic testing allegedly

confirmed the presence of his DNA in a semen sample recovered from the victim’s

clothing. After a hearing following Mr. Jordan’s arrest, the trial court concluded

that no conditions of release would reasonably assure the safety of the community

given the nature and circumstances of the charged offense, the weight of the

evidence against Mr. Jordan, his previous convictions for attempted robbery and

unlawful possession of a firearm, and his history of re-offending while under

supervision. In September 2020, Mr. Jordan filed a bond review motion, arguing

that his continued detention without trial due to the emergency tolling orders was

neither statutorily authorized nor constitutional. The trial court (Beck, J.) denied the

motion, and this appeal followed.

Mr. Sharps is charged along with two co-defendants with armed kidnapping,

armed robbery, armed burglary, armed assaults, and other offenses arising from a

robbery of a marijuana dispensary. He and his alleged accomplices were caught by

police officers who pursued the perpetrators as they fled from the scene. Other

evidence against Mr. Sharps and his co-defendants allegedly includes the

dispensary’s surveillance video footage, in which Mr. Sharps is identifiable, and

DNA evidence from firearms recovered by police in the robbers’ flight path.

Considering, as well, Mr. Sharps’s prior convictions for burglary, robbery, assault 13

and other crimes, the trial court ordered his pretrial detention in October 2019. 29 Mr.

Sharps filed his motion for release in September 2020. 30 Like Mr. Jordan, Mr.

Sharps objected to the extension of his detention by the emergency tolling orders.

The trial court (Kravitz, J.) denied the motion, and Mr. Sharps took this appeal.

III.

We begin by addressing appellants’ non-constitutional claim that D.C. Code

§ 11-947 does not provide emergency authority to extend pretrial detentions under

§ 23-1322(b). In support of that claim, appellants make several points. First, they

argue that the absence, in § 11-947, of any mention of the time limitation on pretrial

detentions implies Congress did not intend the emergency tolling statute to apply to

that limitation. Second, appellants argue that the 100-day provision in § 23-

1322(h)(1) is not a “time deadline” subject to tolling under § 11-947. Third,

appellants assert that secondary canons of statutory construction, and principles of

constitutional avoidance, counsel against construing § 11-947 as authorizing

29 Although the robbery of the marijuana dispensary occurred in February 2019, and the police caught and questioned Mr. Sharps at that time, he was not formally charged until some eight months later. 30 The record indicates that Mr. Sharps had agreed to toll the running of the 100-day trial clock until mid-June 2020 to engage in plea negotiations. Thus, the hundred days had not run before the issuance of the emergency orders. 14

emergency extensions of the time limit on pretrial detention in § 23-1322. Finally,

appellants argue that interpreting § 11-947 to allow such emergency extensions is

inconsistent with the principle that pretrial detention laws like § 23-1322 are

construed strictly in view of the liberty interests at stake for detainees.

The United States responds that the plain language of § 11-947

unambiguously grants the S.C.C.J. authority to suspend time deadlines in § 23-1322

in an emergency. The government further maintains that the 100-day requirement

is a “time deadline” within the meaning of § 11-947 because it “establish[es] a cutoff

date[] by which a detained defendant must be indicted and brought to trial.” 31 And

the government argues that the principle of strict construction applies only to

detention statutes, not “to an emergency statute such as . . . § 11-947, which is

governed by ordinary rules of statutory construction[,]” 32 and that secondary canons

of construction and principles of constitutional avoidance are irrelevant because

§ 11-947 is unambiguous on the point at issue.

31 Appellee’s Opp’n to Emergency Mot. for Summ. Reversal of Detention Order and Cross-Mot. for Summ. Affirmance at 9 (Oct. 26, 2020). 32 Id. at 12. 15

We review questions of statutory interpretation de novo. 33 In doing so, “[o]ur

aim is to ascertain and give effect to the legislature’s intent[.]” 34 The “primary and

general rule” we follow is that “the intent of the lawmaker is to be found in the

language that [it] has used.” 35 In examining that language, “it is axiomatic that the

words of the statute should be construed according to their ordinary sense and with

the meaning commonly attributed to them.” 36 “We will give effect to the plain

meaning of a statute when the language is unambiguous and does not produce an

absurd result. We may also look to the legislative history to ensure that our

interpretation is consistent with legislative intent.” 37

This appeal is the first time our court has had occasion to interpret § 11-947.

We agree with the government that Congress intended that statute to authorize

emergency orders tolling time deadlines pertaining to pretrial detention. Although

§ 11-947 does not expressly mention § 23-1322(b) or pretrial detention, it empowers

33 Eaglin v. District of Columbia, 123 A.3d 953, 955 (D.C. 2015). 34 Kornegay v. United States, 236 A.3d 414, 418 (D.C. 2020) (internal quotation marks and citation omitted). 35 Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc) (quotation marks and citations omitted). 36 Id. (quotation marks and citations omitted). 37 Facebook, Inc. v. Wint, 199 A.3d 625, 628 (D.C. 2019). 16

the S.C.C.J. in plain language to alter “deadlines imposed by any Federal or District

of Columbia law or rule that applies in Superior Court”; and, lest there be any

question, Congress emphasized that this authority “extends to all laws and rules

affecting criminal . . . proceedings,” specifically including pretrial procedures in

those proceedings. 38 Section 23-1322(b) is unquestionably a law affecting criminal

pretrial proceedings in Superior Court. The plain and ordinary meaning of the words

“any” and “all” therefore permit no sub silentio exemption of § 23-1322(b) from the

across-the-board purview of § 11-947. 39 Moreover, we cannot treat the absence of

such an exemption as an oversight—and not just because we have no basis for doing

so. Congress demonstrably considered the question of exemptions and chose to

make one and only one, which is set forth in the explicit clarification in § 11-

947(a)(4) that the statute furnishes no authority to suspend the writ of habeas corpus.

“Where Congress explicitly enumerates certain exceptions . . . additional exceptions

are not to be implied, in the absence of evidence of a contrary legislative intent.” 40

38 Id. § 11-947(a)(1), (2)(B) (emphases added). 39 See United States v. Gonzalez, 520 U.S. 1, 5 (1997) (“Read naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’) (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 97 (1976)); All, MERRIAM-WEBSTER.COM DICTIONARY (“[T]he whole amount, quantity, or extent of.”). 40 Andrus v. Glover Const. Co., 446 U.S. 608, 616–17 (1980). 17

There is no evidence of a contrary intent in the text of § 11-947, and we have found

none in its legislative history. In the absence of such evidence, we “must presume”

Congress said what it meant and meant what it said. 41

We likewise are not persuaded by appellants’ claim that the 100-day limitation

on pretrial detention in § 23-1322(h)(1) does not constitute a “time deadline” within

the meaning of § 11-947. The word “deadline” is not a term of art with a specialized

meaning; it simply means “the latest time by which something must be done.” 42

Appellants assert that the 100-day mark is “not a date ‘before which something must

be done,’ but [rather] a date at which the court’s authority to deprive a [detained]

41 Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (“[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.”) (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241–42 (1989); United States v. Goldenberg, 168 U.S. 95, 102–03 (1897); Oneale v. Thornton, 6 Cranch 53, 68 (1810)). 42 Cf. Deadline, BLACK’S LAW DICTIONARY (11th ed. 2019) (“A cutoff date for taking some action.”); Deadline, AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2011) (“A time limit, as for payment of a debt or completion of an assignment.”); Deadline, COLLINS ENGLISH DICTIONARY (13th ed. 2018) (“[A] time or date before which a particular task must be finished or a particular thing must be done.”); Deadline, MERRIAM-WEBSTER.COM DICTIONARY (“[A] date or time before which something must be done.”). 18

defendant of liberty expires.” 43 But the first half of that assertion is erroneous, and

the second half is misleading.

The 100-day mark is a date by which something must be done—it is the date

by which the court must try a detained defendant or else set conditions for the

defendant’s release; it therefore is a deadline, and it is no less so merely because the

failure to meet it does not bar the government from proceeding to trial thereafter. 44

As the Supreme Court has explained, “a deadline [can] seek speed by creating a

time-related directive that is legally enforceable but does not deprive a judge or other

public official of the power to take the action to which the deadline applies if the

deadline is missed.” 45 Thus, contrary to appellants’ argument, the fact that the

government still may prosecute a defendant who was detained under § 23-1322(b)

43 Appellant Jordan’s Reply to Government’s Opp’n to Emergency Mot. for Summ. Reversal and Opp’n to Government’s Cross-Mot. for Summ. Affirmance at 2–3 (Oct. 29, 2020). 44 See Mack v. United States, 637 A.2d 430, 434 (D.C. 1994) (holding that “the government’s right to proceed with the trial is not affected” by the expiration of the time limit on the duration of detention imposed by § 23-1322(h)(1)). 45 Dolan v. United States, 560 U.S. 605, 611 (2010); see also id. at 607 (referring to a federal law providing that “the court shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing” as imposing a “90-day deadline”). 19

even after 100 days have elapsed does not alter our conclusion that § 23-1322(h)(1)

contains a time deadline.

And (turning to appellants’ alternative characterization) if the 100-day mark

is the date the court’s authority to detain a defendant expires—which is true only if

the government does not meet the deadline (as we would say) of bringing the

defendant to trial by that date—then for that reason too it is the date by which the

court must do something, namely, provide for the detained defendant’s release. So

to put it more accurately than appellants have, § 23-1322(h)(1) sets a court

“deadline” for either trying the detained defendant or setting conditions for the

defendant’s release.

This court previously used the word “deadline,” appropriately and in its

ordinary sense, when it referred in 2009 to the “100-day trial deadline” in § 23-

1322(h)(1). 46 The court did not misspeak. It is a “time deadline” to which § 11-947

clearly applies. 47

46 Ferguson v. United States, 977 A.2d 993, 1000 (D.C. 2009). 47 The dissent objects that our plain-meaning construction of the term “deadline” in § 11-947 “defies logic” because it would allow the S.C.C.J. to invoke the statute “to extend any number of significant intrusions on liberty”—for example, the dissent says, to lengthen a criminal defendant’s prison sentence “beyond the statutory maximum for all crimes under the D.C. Code,” or a post-conviction sex 20

As the language of § 11-947 is clear and unambiguous, we have no occasion

to rely on the principle of constitutional avoidance in interpreting the statute. 48 The

offender’s registration period beyond the statutory ten-year limit—which Congress “surely” did not intend and which would “undoubtedly” be unconstitutional. Post at 44-45. This objection is not well-taken.

The emergency tolling authority granted the S.C.C.J. by § 11-947 is not a free- wheeling authority to extend deadlines wherever they exist in the law. It is limited to those deadlines, such as the 100-day clock on trying a defendant or setting the defendant’s conditions of release, that come up in disrupted Superior Court “proceedings.” The mini-parade of horribles imagined by the dissent does not involve deadlines involved in court proceedings, so the statute cannot be invoked to alter such things as a defendant’s sentence or sex offender registration period. Because there is no realistic possibility of the statute being used as the dissent fears, our interpretation of it should not be governed by “terror of [the dissent’s] extreme hypotheticals.” United States v. Brown, 740 F.3d 145, 150 n.10 (3rd Cir. 2014) (citation and internal quotation marks omitted). In the highly unlikely (if not inconceivable) event that § 11-947 were to be invoked in one of the dissent’s hypothetical and unreal scenarios, the patent unconstitutionality of doing so suffices to dispel the dissent’s angst over the breadth of the term “deadline.” “[W]e do not impute to Congress an intent to pass legislation that is inconsistent with the Constitution.” United States v. X-Citement Video, Inc., 513 U.S. 64, 73 (1994) (citing Yates v. United States, 354 U.S. 298, 319 (1957)). 48 See Facebook, Inc. v. Wint, 199 A.3d 625, 633 (D.C. 2019) (“Because we find the SCA to be unambiguous on the point at issue in this case, we see no basis for applying the doctrine of avoidance.”); F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009) (“[C]onstitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts.”) (emphasis added); see also, e.g., Jennings v. Rodriguez, 138 S.Ct. 830, 843 (2018) (explaining that the doctrine of constitutional avoidance is pertinent when a court must “choos[e] between competing plausible interpretations of a statutory text,” but merely “[s]potting a constitutional issue does not give a court the authority to rewrite a statute as it pleases” (emphasis in original; citation omitted)). 21

same holds true for “expressio unius est exclusio alterius,” a secondary canon of

statutory construction that appellants invoke. 49 In any event, we consider the

constitutional avoidance principle inapposite because (as we explain below) we

entertain no serious doubt of the facial constitutionality of emergency orders issued

under § 11-947 to extend pretrial detention under § 23-1322(b). And appellants’

reliance on the expressio unius canon, which posits that “when a legislature makes

express mention of one thing, the exclusion of others is implied,” 50 is also misplaced.

Appellants argue that § 23-1322(h)(4) lists eight time periods that do not count

towards the computation of the 100-day period, without mentioning emergency

tolling among them—implying, they claim, that emergency tolling pursuant to § 11-

947 cannot enlarge the maximum authorized period of detention. For more than one

reason, this argument is defective. First, it misapprehends the purpose and effect of

an emergency deadline-tolling order under § 11-947. It does not specify an

49 See, e.g., Hubb v. State Farm Mut. Auto. Ins. Co., 85 A.3d 836, 842–43 (D.C. 2014) (“[E]xpressio unius est exclusio alterius . . . is an aid to construction of a statute rather than a rule of law. We . . . ignore such an aid when the plain meaning of the statute and the intent of the legislature is clear from the expressed words in the statute.”) (citing Council of District of Columbia v. Clay, 683 A.2d 1385, 1390 (D.C. 1996)). Reliance on the rule of lenity, another interpretive canon cited by appellants, fails for the same reason. See Fleming v. United States, 224 A.3d 213, 228 (D.C. 2020) (en banc) (explaining that the rule of lenity “is to be invoked only where the statutory language, structure, purpose, and history leave the intent of the legislature in genuine doubt (internal quotation marks and citation omitted)). 50 Odeniran v. Hanley Wood, LLC, 985 A.2d 421, 427 (D.C. 2009). 22

additional time period to be left out of the 100-day computation, but rather extends

the authorized period of detention beyond 100 days by suspending the 100-day

deadline altogether. 51 Second, the expressio unius argument overlooks the fact that

the pretrial detention statute expressly contemplates extensions of detention beyond

the computed 100 days for “good cause shown,” a term that is explicitly not limited

to any exclusive list of circumstances. Third, and perhaps most fundamentally,

appellants’ expressio unius argument focuses on the wrong statute—the issue before

us is how to construe § 11-947, not § 23-1322. As we saw in discussing the sole

exception (for habeas corpus) to the scope of emergency authority granted by § 11-

947, application of the expressio unius canon to construe that statute actually

supports its applicability to pretrial detention orders.

To the extent appellants rely on the canon that when two statutes are in

irreconcilable conflict, the more specific statute governs the more general one

51 See J.P. v. District of Columbia, 189 A.3d 212, 218 (D.C. 2018) (“[T]he canon expressio unius est exclusio alterius does not apply to every statutory listing or grouping; it has force only when the items expressed are members of an associated group or series, justifying the inference that items not mentioned were excluded by deliberate choice.” (quoting Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003))). 23

“unless it appears that the legislature intended to make the general act controlling,” 52

they fare no better. For the reasons we already have given, we are convinced that

Congress did intend to make § 11-947 controlling, since it plainly extends to all

statutory deadlines affecting criminal proceedings and was enacted later in time than

§ 23-1322(h). Moreover, as we next discuss, the perceived conflict is illusory—a

statute that allows deadline extensions of trials for good cause shown cannot be said

to conflict with a statute that allows such extensions when an emergency makes trial

impossible.

That we construe pretrial detention statutes strictly “to ensure that defendants

are not detained without bond ‘unless the lawmaker has clearly said they should

be’” 53 would not warrant rejecting what we take to be the plain language and

meaning of § 11-947, even if appellants were correct in viewing the emergency

statute as effecting a “major expansion” of preventive detention under § 23-

1322(b). 54 That view, however, is not correct. We do not construe § 11-947 to

52 Speyer v. Barry, 588 A.2d 1147, 1163 (D.C. 1991) (quoting 2A N. Singer, Sutherland Statutory Construction § 51.05 (4th ed. 1973)). 53 Blackson v. United States, 897 A.2d 187, 194 (D.C. 2006) (quoting Pope v. United States, 739 A.2d 819, 825 (D.C. 1999)). 54 See Covington v. United States, 698 A.2d 1033, 1036 n.6 (D.C. 1997) (“We think it unlikely that the Council would have enacted a major expansion of the 24

authorize any prolongation of pretrial detention that is not already obtainable under

the terms of the detention statute itself. If an emergency (such as the COVID-19

pandemic) is so serious that it prevents the Superior Court from holding jury trials,

we have no doubt it would constitute “good cause” for extending the trial deadline

for pretrial detainees within the meaning of § 23-1322(h)(1). It follows that even if

§ 11-947 did not exist, the government would nevertheless—where the emergency

is on-going, as under the current circumstances—be able to obtain successive

twenty-day extensions of the pretrial detention periods of defendants being held

under § 23-1322(b). Procedurally, of course, this alternative would be quite

cumbersome, as the government would need to apply for additional extensions in

each individual case every three weeks or so. But substantively, there is no

difference between such repeated extensions for good cause and § 11-947’s tolling

provisions, which allow the Superior Court to much more efficiently prolong pretrial

detention across the board for the exact same reasons. Thus, there is no substantive

inconsistency between our interpretation of the scope of the emergency authority

granted by § 11-947 and the court’s existing authority to extend the duration of

pretrial detention under § 23-1322(b).

availability of preventive detention . . . without any debate or explicit consideration whatever.”). 25

IV.

We turn to appellants’ constitutional arguments, starting with their substantive

due process claims, and specifically with the facial challenge they present.

A.

The Fifth Amendment’s Due Process Clause guarantees that “[n]o person

shall . . . be deprived of life, liberty, or property, without due process of law[.]” 55

“The Due Process Clause ensures more than fair process in the deprivation of liberty,

however, for it also contains a substantive component that provides heightened

protection against government interference with . . . those fundamental rights and

liberties which are . . . implicit in the concept of ordered liberty[.]” 56 The Supreme

Court has held that substantive due process shields detainees from “punish[ment]

prior to an adjudication of guilt.” 57

55 U.S. Const. amend. V. 56 Jordan v. United States, 235 A.3d 808, 815 (D.C. 2020) (citing Washington v. Glucksberg, 521 U.S. 702, 719–20 (1997) and In re W.M., 851 A.2d 431, 447 (D.C. 2004)). 57 Bell v. Wolfish, 441 U.S. 520, 535–36 (1979) (citing Ingraham v. Wright, 430 U.S. 651, 671–72 n.40, 674 (1977); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165–67, 186 (1963); and Wong v. United States, 163 U.S. 228, 237 (1896)). 26

Appellants contend that if § 11-947 authorizes emergency extensions of the

100-day trial deadline in § 23-1322(h), as we hold it does, then it offends the

foregoing principles of substantive due process and creates a facially

unconstitutional detention. Relying on United States v. Salerno, 58 appellants argue

that to comply with the mandates of substantive due process, “a pretrial detention

scheme must sharply limit the scope and duration of detention.” 59 The United States

replies that “specified time deadlines on pretrial detention are not constitutionally

mandated” and that “preventive detention is constitutionally tolerable as long as it

serves a legitimate regulatory goal.” 60 The government has the better of the

argument.

A facial constitutional challenge to a law must overcome significant hurdles,

for the challenger “can only succeed by establishing that no set of circumstances

exist under which the [statute] would be valid, i.e. that the law is unconstitutional in

58 481 U.S. 739 (1987). 59 Appellant Jordan’s Emergency Mot. for Summ. Reversal at 8 (Oct. 19, 2020). 60 Appellee’s Opp’n to Emergency Mot. for Summ. Reversal of Detention Order and Cross-Mot. for Summ. Affirmance at 17–18 (Oct. 26, 2020). 27

all of its applications.” 61 In Salerno, the Supreme Court rejected a facial substantive

due process challenge to preventive pretrial detention under the federal Bail Reform

Act of 1984 (BRA), a statute modeled on the District’s pretrial detention statute. 62

Recognizing the compelling governmental interests in ensuring the safety of the

community and a defendant’s appearance at trial, the Court upheld temporary

preventive detention of dangerous defendants under the BRA as being regulatory

rather than punitive in nature, and hence not facially invalid. In so doing, the Court

reasoned that the law provided adequate substantive and procedural safeguards to

ensure that the detention was not punitive:

[The BRA] carefully limits the circumstances under which detention may be sought to the most serious of crimes. The arrestee is entitled to a prompt detention hearing . . . and the maximum length of pretrial detention is limited by the stringent time limitations of the Speedy Trial Act. Moreover . . . the conditions of confinement envisioned by the Act appear to reflect the regulatory purposes relied upon by the Government. 63

61 Plummer v. United States, 983 A.2d 323, 338 (D.C. 2009) (citing Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008); Salerno, 481 U.S. at 745; Gonzales v. Carhart, 550 U.S. 124, 167 (2007); and Rust v. Sullivan, 500 U.S. 173, 183 (1991)). 62 Salerno, 481 U.S. at 741. 63 Id. at 747 (internal citations and quotation marks omitted) (emphasis added). 28

Picking up on the italicized language in the foregoing passage, appellants

argue that emergency tolling of the 100-day trial deadline in § 23-1322(b) pursuant

to § 11-947 unconstitutionally permits prolonged pretrial detention without

“stringent time limitations” ensuring that the detention is not punitive.

In making this claim, however, appellants essentially reprise an argument that

a post-Salerno decision of this court already has rejected. In McPherson v. United

States, the appellant, Ms. McPherson, challenged the constitutionality of D.C. Code

§ 23-1325(a), a companion pretrial detention statute for defendants charged with

murder or assault with intent to kill while armed. 64 That statute, unlike § 23-1322,

contains no deadline at all for bringing a detained defendant to trial or releasing the

defendant. Much like appellants in the present case, Ms. McPherson argued that

§ 23-1325(a) is facially invalid because the Due Process Clause “forbids

governments from depriving individuals of liberty before trial without stringent time

limitations to assure that detention is used strictly for the regulatory purpose of

preserving the status quo before trial, and not as a substitute to trial and

conviction.” 65 This court disagreed and upheld the facial validity of § 23-1325(a),

64 692 A.2d 1342, 1344 (D.C. 1997). 65 Id. at 1346. 29

stating it “kn[e]w of no case that recognizes a constitutional right to liberty before

trial after the passage of a particular time period.” 66

Like appellants, Ms. McPherson relied for support of her due process claim

on the Supreme Court’s decision in Foucha v. Louisiana, which struck down a state

law permitting indefinite and possibly permanent confinement in a mental facility of

a person found not guilty by reason of insanity “until he is able to demonstrate that

he is not dangerous to himself and others, even though he does not suffer from any

mental illness.” 67 Several years later, in Zadvydas v. Davis, the Court avoided a

somewhat similar problem of indefinite and possibly permanent confinement by

construing a federal statute authorizing detention of a removable alien beyond ninety

days “to contain an implicit ‘reasonable time’ limitation [six months], the application

of which is subject to federal court review.” 68 The Court’s decisions in these cases

turned on its recognition that petitioners’ indefinite detentions could be “permanent”

because they were terminable only by a contingent event that might never occur. 69

66 Id. 67 504 U.S. 71, 73 (1992). 68 533 U.S. 678, 682 (2001). 69 Foucha, 504 U.S. at 83 (“Here . . . the State asserts that because Foucha once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which there is no effective treatment, he 30

Pretrial detention under § 23-1322(b) due to § 11-947 emergency tolling

orders is not “indefinite” in the sense of Foucha or Zadvydas. We do not dispute

that a law authorizing pretrial detention of a truly indeterminate (and potentially

permanent) duration would offend substantive due process, as such a statute would

be punitive rather than permissibly regulatory. But appellants do not and cannot

contend that emergency tolling means pretrial detention can or will continue

indefinitely without trials ever being scheduled and held. 70 Emergency tolling ends

when the emergency ends, or is overcome. Even if there may be uncertainty as to

when that will happen, the statutory premise is that it will happen in the foreseeable

future and that trials will then resume. In Zadvydas, to avoid any question of

unconstitutionality, the Supreme Court construed the federal law to permit

prolonged detention of non-citizens on the condition that “once removal is no longer

reasonably foreseeable, continued detention is no longer authorized by statute.” 71

may be held indefinitely.”); Zadvydas, 533 U.S. at 692 (“The serious constitutional problem arising out of a statute that, in these circumstances, permits an indefinite, perhaps permanent, deprivation of human liberty without any such protection is obvious.”). 70 Cf. McPherson, 692 A.2d at 1346 (explaining that Ms. McPherson was “not being confined indefinitely” merely because the pretrial detention statute did not set a deadline by which her trial had to be commenced; “[r]ather, she is being confined only pretrial, or until the outcome of her trial”). 71 Zadvydas, 533 U.S. at 699. 31

Section 11-947 comports with such a limitation; once the triggering emergency is

over and it becomes feasible to try the defendant, further extensions of pretrial

detention are no longer authorized. And despite the persistence of the COVID-19

pandemic, it is still reasonably foreseeable that trials will resume in the Superior

Court in the not-too-distant future. 72

Appellants’ facial challenge also overlooks key features of the statutory

scheme at issue in Salerno. The BRA itself does not constrain the duration of

preventive detention. 73 Instead, “Congress relied on the [federal] Speedy Trial Act

. . . to limit the period of pretrial incarceration.” 74 While the Speedy Trial Act sets

a ninety-day deadline for commencing the trial of a detained person, 75 this deadline

is not a firm one. The Act also provides a number of ways in which that deadline

may be extended and the period of detention prolonged, including by allowing the

72 As explained above, the Superior Court already has begun taking steps to resume jury trials for certain pretrial detainees whose trials have been delayed by the pandemic. 73 United States v. Accetturo, 783 F.2d 382, 387 (3rd Cir. 1986) (explaining that, when drafting the BRA, the “Senate Judiciary Committee twice rejected a specific time period beyond which a defendant could not be incarcerated pretrial”). 74 Id. See Salerno, 481 U.S. at 741 (“[T]he maximum length of pretrial detention is limited by the stringent time limitations of the Speedy Trial Act.”). 75 18 U.S.C. § 3164(b). 32

trial court to grant a continuance based on “findings that the ends of justice served

by taking such an action outweigh the best interest of the public and the defendant

in a speedy trial.” 76

When the Supreme Court referred in Salerno to the “stringent time

limitations” of the Speedy Trial Act, it doubtless was fully aware of this and other

exceptions in that Act and their applicability to preventive detention under the

BRA. 77 Thus, the Court must have been satisfied that the continuance-for-the-ends-

of-justice option, which could prolong pretrial detention well beyond the prescribed

ninety days, did not render the federal scheme impermissibly punitive. 78 Placed in

this context, it is apparent that Salerno’s reference to “stringent time limitations”

does not mean a pretrial detention statute must be inflexible in order to satisfy

substantive due process. The flexibility supplied by the emergency tolling

provisions of § 11-947 and, for that matter, by the provision for “good cause”

extensions in § 23-1322(h), is consistent with statutory exceptions to pretrial

76 18 U.S.C. § 3161(h)(7)(A). 77 See United States v. Hare, 873 F.2d 796, 800 (5th Cir. 1989). 78 Cf. id. at 801 (noting that “the application of the complex-trial exception to the Speedy Trial Act does not by itself change the regulatory nature of pretrial detention.”). 33

detention deadlines that Salerno implicitly approved. In fact, the provision for

emergency continuances in § 11-947 arguably is more restrictive than the Speedy

Trial Act continuances that many federal courts have relied on to lengthen pretrial

detention periods during this pandemic 79 given that: (1) the S.C.C.J. must obtain the

Joint Committee’s consent before entering a tolling order for a period of more than

fourteen days, 80 (2) the S.C.C.J must notify two congressional subcommittees of any

such order and publish its text on the D.C. Courts website, 81 and (3) after the tolling

order expires, the S.C.C.J. must submit reports to the same two subcommittees and

the Joint Committee explaining the reasons for issuing the orders, their duration,

their effect on litigants, and the resulting costs to the courts.82 Taken together, these

measures clearly indicate that § 11-947 “is regulatory, not penal.” 83

For the foregoing reasons, we hold that, on its face, pretrial detention under

§ 23-1322(b), as tolled in emergencies by § 11-947, remains “regulatory in nature,

79 See United States v. Taylor, 2020 WL 7264070 *6 (D.D.C. 2020) (collecting cases where federal courts have granted Speedy Trial Act continuances postponing trials due to the pandemic). 80 D.C. Code § 11-947(d). 81 Id. § 11-947(e). 82 Id. § 11-947(f). 83 Salerno, 481 U.S. at 746. 34

and does not constitute punishment before trial in violation of the Due Process

Clause.” 84 We therefore reject appellants’ facial constitutional challenge.

B.

We do not foreclose as-applied due process challenges to the emergency

extension of pretrial detention. In Salerno, the Court acknowledged that there is a

“point at which detention in a particular case might become excessively prolonged,

and therefore punitive, in relation to Congress’ regulatory goal.” 85 Mr. Sharps

claims his continuing detention is “excessive” and constitutes an as-applied violation

of his right to substantive due process. “In determining whether [Mr. Sharps’s]

pretrial detention violated his due process rights, we review the [Superior Court’s]

factual determinations for clear error. The constitutional significance of those

findings, including the ultimate determination of whether due process has been

violated, is reviewed de novo.” 86 Mr. Sharps and the government agree on

evaluating his due process claim under a three-factor test articulated by the Second

84 Id. at 748. 85 Id. at 747 n.4. 86 United States v. El-Hage, 213 F.3d 74, 79 (2d Cir. 2000). The government does not contend that Mr. Sharps forfeited or waived his as-applied claim by failing to flesh it out sufficiently in the proceedings below. 35

Circuit, which looks to (1) the length of detention and non-speculative future

detention, (2) the extent to which the government bears responsibility for the delay

in starting trial, and (3) the strength of the evidence supporting the conclusion that

no combination of conditions of release can ensure the safety of the community or

return to court. 87

This court has not adopted the balancing test Mr. Sharps proposes, 88 but for

present purposes we assume it is appropriate and will apply it. As to the first factor,

Mr. Sharps has been held since October 2019, and he claims he is unlikely to be tried

until late 2021. That is a period of approximately two years, a regrettably long time

87 See United States v. Orena, 986 F.2d 628, 630 (2d. Cir. 1993); cf. Hare, 873 F.2d at 801 (“Like other circuits, we find that the due-process limit on the duration of preventive detention requires assessment on a case-by-case basis, for the clause establishes no specific limit on the length of pretrial confinement. In determining whether due process has been violated, a court must consider not only factors relevant in the initial detention decision, such as the seriousness of the charges, the strength of the government’s proof that the defendant poses a risk of flight or a danger to the community, and the strength of the government’s case on the merits, but also additional factors such as the length of the detention that has in fact occurred or may occur in the future, the non-speculative nature of future detention, the complexity of the case, and whether the strategy of one side or the other occasions the delay.” (Footnotes omitted)). 88 See Kleinbart v. United States, 604 A.2d 861, 872 n.18 (D.C. 1992) (referencing the Second Circuit’s test for “deciding whether the length of detention before trial violates due process”) (citing United States v. Ojeda Rios, 846 F.2d 167, 169 (2d Cir. 1988), and United States v. Gonzales Claudio, 806 F.2d 334, 340 (2d Cir. 1986)). 36

to be sure, but “the length of detention alone is not dispositive and ‘will rarely by

itself offend due process.’” 89

The second factor does not weigh in Mr. Sharps’s favor. He contends the

government is responsible for the delay in starting his trial because it could have

charged him in February 2019, when he was first stopped and questioned about the

89 El-Hage, 213 F.3d at 81 (holding that pretrial detention lasting thirty to thirty-three months did not violate due process) (quoting United States v. Millan, 4 F.3d 1038, 1044 (2d Cir. 1993) (ruling that a thirty-one month pretrial detention was constitutional), and United States v. El-Gabrowny, 35 F.3d 63, 65 (2d Cir. 1994) (finding that pretrial detention expected to last twenty-seven months did not offend due process)); United States v. Briggs, 697 F.3d 98, 103 (2d. Cir. 2012) (holding that pre-trial detention of nearly twenty-six months did not violate due process); United States v. Hill, 462 F. App’x. 125, 127 (2d Cir. 2012) (same); United States v. Vondette, 5 F. App’x. 73, 75–76 (2d Cir. 2001) (holding that defendant’s forty- month pretrial detention did not violate due process). Usually applying the Second Circuit’s tripartite test, other courts have reached similar conclusions. See, e.g., United States v. Watson, 475 F. App’x. 598, 603 (6th Cir. 2012) (holding that approximately twenty-month period of pretrial detention did not violate substantive due process); United States v. Gonzalez, 995 F. Supp. 1299, 1304 (D.N.M. 1998) (holding that pretrial detention of thirty-five to thirty-seven months did not violate substantive due process); United States v. Landron–Class, 705 F.Supp.2d 154, 156– 57 (D.P.R. 2010) (holding that twenty-nine month pretrial detention did not offend due process); United States v. Mohammed, 2017 WL 2365247 *6 (N.D. Ohio 2017) (holding that projected twenty-two month detention did not violate substantive due process); United States v. Telfair, 2008 WL 5188846 *4 (D.N.J.) (same); United States v. Flores, 2018 WL 3530837 *2–*3 (C.D. Cal. 2018) (holding that fifty-two month pretrial detention did not violate substantive due process); State v. Labrecque, 2020 WL 5268718 *7–*8 (Vt. 2020) (holding that twenty-five month pretrial detention due to COVID-19 pandemic was not constitutionally excessive). 37

robbery of the marijuana dispensary, instead of waiting until October 2019 to do so.

This argument is misguided because it pertains to the eight months before Mr. Sharps

was preventively detained under § 23-1322(b). Once his pretrial detention began,

the record shows that Mr. Sharps himself assented to the delay in proceeding to trial,

because his counsel agreed to toll the 100-day clock so that Mr. Sharps could

consider a plea offer. And Mr. Sharps does not assert, nor could he, that the

government is responsible for the global pandemic that has prevented jury trials in

the Superior Court.

Turning to the third factor—the strength of the evidence that Mr. Sharps is

dangerous and that no combination of release conditions can ensure the safety of the

community—the trial court’s initial detention order relies on both the evidence

supporting the current charges against Mr. Sharps (relating to the armed robbery of

the marijuana dispensary and the assaults on and kidnapping of its employees) and

his criminal record. As to his involvement in the dispensary incident, the detention

order cites the following facts: (1) the police discovered Mr. Sharps hiding under a

stairwell after fleeing the scene, in close proximity to a distinctively patterned coat

that is prominent in surveillance video of the robbery, zip ties similar to those used

to restrain the dispensary employees, and cash consistent with what was in the

dispensary’s register; (2) the surveillance video is “of high quality” and Mr. Sharps’s 38

face is readily identifiable on it; (3) forensic evidence links Mr. Sharps to the

firearms used in the robbery; and (4) a witness described Mr. Sharps’s participation

in the robbery to police. As to Mr. Sharps’s criminal record, it includes many prior

criminal convictions for burglary, assault, robbery, and firearms offenses. Suffice it

for us to say that the third factor of Mr. Sharps’s chosen balancing test does not tilt

in his favor. 90

90 For much the same reasons, we are not persuaded by Mr. Sharps’s alternative argument that the trial court was mistaken in concluding no combination of release conditions could reasonably assure the safety of the community. “In general, our review of a preventive detention order is limited. This court will not substitute its assessment of a defendant’s dangerousness for the trial judge’s determination of that essentially factual issue, and we will therefore sustain the judge’s decision so long as it ‘is supported by the proceedings below.’” Pope, 739 A.2d at 824 (quoting Scott v. United States, 633 A.2d 72, 73 (D.C.1993)). The trial court was presented with abundant proof triggering the statutory rebuttable presumption of dangerousness (based on the court’s finding of probable cause that Mr. Sharps committed a crime of violence while armed, see §23-1322(c)(1)) when the court made its initial determination on pretrial detention under § 23-1322(b). Mr. Sharps argues that, when reviewing his subsequent bond review motion, the court should have given more weight to factors favorable to him, including his family ties, prior employment, health, and his lack of rearrests in the months between the date of the charged offenses and his arraignment. But this is not a basis for reversal. Blackson, 897 A.2d at 197 (“[I]t is not our function . . . to engage in the discretionary balancing of relevant factors that is committed to the trial court”). Mr. Sharps’s bond review motion does not proffer any change in the circumstances regarding his dangerousness from what was presented to the trial court at his preliminary hearing in October 2019. Indeed, Mr. Sharps has not provided a transcript of that hearing. Thus, we cannot say that the trial court erred in declining to release him. See Romero v. United States, 956 A.2d 664, 668 (D.C. 2008) (“The appellant in any case bears the burden of presenting us with a record sufficient to show affirmatively that error occurred[.]”) (citations omitted). 39

Considering all three factors, we conclude that he has not established that his

continued pretrial detention for the protection of the community is unconstitutionally

punitive.

C.

In addition to their substantive due process claims, appellants assert that the

emergency extension of their pretrial detention violated their rights to procedural

due process because the existing statutory procedures are inadequate to account for

extended detention. We do not address appellants’ procedural due process claims

on the merits because they are not properly before us. Neither appellant raised

procedural due process issues in the motions for release they made in Superior

Court, 91 and it is well-established that “[n]ormally, a claim that was not raised or

passed on in the trial court will be ‘spurned’ on appeal.” 92 Moreover, even on appeal,

appellants have not identified any specific procedures to which they were entitled

91 Mr. Jordan’s motion made a passing reference to procedural due process, but his arguments did not address it. Mr. Sharps’s motion did not mention procedural due process at all. 92 Tilley v. United States, 238 A.3d 961, 969 (D.C. 2020). 40

but were denied. 93 We will not rule on a claim of constitutional violation under these

circumstances. 94

For the foregoing reasons, we affirm the denials of appellants’ motions for

release from pretrial detention.

So ordered.

93 See Comford v. United States, 947 A.2d 1181, 1188 (D.C. 2008) (“Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”); see also Lowery v. United States, 3 A.3d 1169, 1173 (D.C. 2010) (“[I]t is inherent in the nature of plain error review that appellant must make that showing based on the record on appeal: ‘[I]t is appellant’s duty to present this court with a record sufficient to show affirmatively that error occurred.’” (punctuation omitted) (quoting In re D.M., 993 A.2d 535, 542 n.16 (D.C. 2010), and Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C. 1982))). 94 Cf. Connecticut Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 8 (2003) (declining to address whether a state law offended substantive due process because respondent framed his constitutional challenge in strictly procedural terms); District of Columbia v. Wical Ltd. P’ship, 630 A.2d 174, 182 (D.C. 1993) (“Courts should not decide more than the occasion demands.”). 41

BECKWITH, Associate Judge, dissenting: Under this court’s case law, a judge

cannot detain a person prior to trial unless there is express statutory authority for that

detention, meaning “the lawmaker has clearly said they should be” detained. 1 The

trial court’s orders detaining Mr. Jordan and Mr. Sharps are unlawful because neither

D.C. Code § 23-1322(h) (2020 Supp.)—the “exclusive source of the court’s power

to order pretrial detention” 2—nor the emergency tolling provision of D.C. Code

§ 11-947 (2020 Supp.) clearly authorizes their continued incarceration pending trial.

There may be persuasive arguments in favor of a statute authorizing indefinite

emergency-related incarceration of pretrial detainees. Right now the District has no

such law. For this reason, I respectfully dissent from my colleagues’ conclusion that

the trial court had statutory authority to detain Mr. Jordan and Mr. Sharps beyond

the time authorized by § 23-1322.

As an initial matter, § 23-1322(h) itself does not allow these detentions—

roughly 500 days thus far for Mr. Sharps and 300 days for Mr. Jordan—because its

authority to detain is explicitly limited. Section 23-1322(h) requires that defendants

1 Blackson v. United States, 897 A.2d 187, 194 (D.C. 2006). 2 Best v. United States, 651 A.2d 790, 792 (D.C. 1994); Hazel v. United States, 483 A.2d 1157, 1159 (D.C. 1984). D.C. Code § 23-1325(a) sets forth the bases for detaining a different category of individuals—those charged with first- and second- degree murder and assault with intent to kill while armed. 42

facing the charges at issue be released after 100 days, absent a 20-day extension of

time for good cause or an exclusion of time from the 100-day limit based on delays

related to competency evaluations or the like. See D.C. Code § 23-1322(h)(4). Here,

the government did not request an extension of time for good cause and did not seek

to exclude time from the 100-day limit calculation. The trial court instead granted

the government’s request for detention based upon the Superior Court chief judge’s

order (and subsequent like orders) tolling all “deadlines and time limits” that would

otherwise have expired during the pandemic. The chief judge issued this order

pursuant to D.C. Code § 11-947, a law titled “Emergency authority to toll or delay

proceedings,” which allows the chief judge in an “emergency situation” to toll all

“time deadlines” under D.C. law when it would be “impracticable” for the parties

“to comply with” such deadlines. D.C. Code § 11-947(a). The question, then, is

whether § 11-947 clearly authorizes detention past the 100-day limit set by § 23-

1322(h).

The problem with relying on § 11-947 to extend § 23-1322’s limited

detention authority is that the emergency tolling statute does not expressly authorize

such detention. The law’s text says nothing about pretrial detention. Its legislative

history says nothing about pretrial detention. The majority offers several creative,

if hypertechnical, ways in which the 100-day limit on the power to detain might be 43

construed as a “deadline” that could be tolled under § 11-947. 3 But the bottom line

is that the meaning of “deadline” is not clear in this context. The thrust of the statute

is to toll or delay proceedings and to allow parties to finish difficult tasks under

difficult situations with reasonable leeway. The law’s drafters, some or all, may well

have deemed it sensible to toll any and all discovery, indictment, trial, and briefing

deadlines while having no intention of authorizing further pretrial detention of

people who are presumed to be innocent—many of whom, as counsel for Mr. Jordan

noted at oral argument, will eventually be acquitted, have their charges dropped, or

plead to charges carrying sentences that are less than the time they have already

served pretrial. The tolling of procedural deadlines undoubtedly has consequences,

3 The majority notes, for example, that in one decision this court characterized the 100-day limit as a “deadline” in passing. Ante at 19 (citing Ferguson v. United States, 977 A.2d 993, 1000 (D.C. 2009)). My colleagues also suggest that the statement in § 11-947(a)(4) that “[n]othing in this section shall be construed to authorize suspension of the writ of habeas corpus” is evidence that Congress intended the statute to apply to pretrial detention. Ante at 16, 22. At the outset, the government never mentioned the reference to habeas corpus in its pleadings and presumably accorded little significance to the provision. The inclusion of such language in § 11-947—placed conspicuously apart from the terms setting out the statute’s scope—in no way demonstrates that Congress contemplated and included all exemptions to the chief judge’s authority. And it in no way clearly establishes authority to detain, incarcerate, or otherwise infringe the liberty interests of people beyond clearly established time limits in other statutes. The provision resembles the sort of caveat contained in many statutes by which the drafters make clear that they are aware of constitutional limits on their authority. See, e.g., D.C. Code § 22- 3022(a)(1) (2012 Repl.) (excluding certain evidence of a sex assault victim’s past sexual behavior unless such evidence “is constitutionally required to be admitted”). 44

and each day that goes by without an indictment, a trial date, or discovery disclosures

may be detrimental to parties in myriad ways. Each additional day of pretrial

incarceration, however, could mean the difference between a job and no job, or

absence from the birth of one’s child, or the risk of being physically assaulted or

contracting a deadly virus. This court cannot credibly conclude that the legislators

who passed a relatively straightforward statute tolling deadlines in emergencies must

necessarily have also intended an unprecedented expansion of detention authority.

The majority concludes that even though § 11-947 does not mention § 23-

1322 or pretrial detention, the breadth and generality of its terms establish its

“across-the-board purview.” Ante at 22. By the majority’s logic, the chief judge

could invoke § 11-947 to extend the time limit for any number of significant

intrusions on liberty—post-conviction sex offender registration beyond the ten-year

limit, jurisdiction of the family court over young people past their twenty-first

birthday, or even prison sentences beyond the statutory maximum for all crimes

under the D.C. Code. Increasing someone’s actual sentence would undoubtedly run

afoul of the Constitution in more ways than one, 4 but as a matter of statutory

4 See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.”); see also U.S. Const. art. I, § 9, cl. 3 (Ex Post Facto Clause); Solomon v. 45

interpretation, the government could fairly argue, under the majority’s theory, that

Congress must have intended all of these expansions by allowing the tolling of

“timing deadlines.” Congress surely intended none of these, however, and it defies

logic to construe the term “deadline” in a way that plainly includes them. 5

Even if Congress did intend such an expansion, it did not say so clearly, and

it easily could have. It is “unlikely that the [legislature] would have enacted a major

expansion of the availability of pretrial detention . . . without any debate or explicit

consideration whatever.” Covington v. United States, 698 A.2d 1033, 1036 n.6 (D.C.

1997) (strictly construing a statute authorizing preventive detention based on a risk

of witness intimidation). In the majority’s view, extending the pretrial detention of

people like Mr. Jordan and Mr. Sharps under § 11-947 does not significantly expand

United States, 120 A.3d 618, 621 (D.C. 2015) (stating that an Ex Post Facto Law includes a law “that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed”). 5 The majority refers to the dissent’s “angst” over this “mini parade of horribles,” but this dissent is not animated by any feeling that Congress did something wrong. The point is that the majority is incorrect about what Congress intended, and among the reasons we know it is wrong is that it does not make sense that Congress, without clearly saying so in the legislative history or in the statute’s own words, would have expanded detention authority in a way that encompasses these examples. What is one of the horribles is the effect of the majority’s reading: prolonged detention on the basis of probable cause alone without any effective mechanism to ensure that the basis of that detention is still justified after it exceeds the carefully limited detention that our existing statute authorizes. 46

detention authority because the “good cause” provision of § 1322(h) already

furnishes that authority to the same extent. This contention rests upon the

assumption that a Superior Court judge would readily deem the pandemic to be

“good cause” for an extension of the 100-day limit not once, but more like twenty

consecutive times. If a Superior Court judge were to deny the government’s request

for a good cause extension based on the pandemic, the government (and my

colleagues in the majority) would contend that § 11-947 still legally extends the 100-

day limit. And of course the government did not seek a good-cause extension here,

so the only possible source of authority for the detention in this case is § 11-947.

Our rule of strict construction of detention statutes would mean little if Congress

could evade it by using a different statute—a “nondetention statute” not subject to

strict construction—to expand the authority granted by the first.

While I would reverse the detention orders in this case on the ground that they

lack statutory authority, I agree with Mr. Jordan and Mr. Sharps that their detention

under § 11-947 also raises due process concerns. In March of 2020, the chief judge’s

order postulated that the Superior Court could resume regular operations and jury

trials in May. The chief judge then delayed these events to August. Then again to

November, then to January, and most recently to March 31, 2021. See ante notes

13–17. Now this court concludes that because the Superior Court’s Criminal 47

Division has said it will set some cases 6 for trial beginning March 22, 2021, there is

light is at the end of the tunnel. Ante at 8. I largely agree with the majority’s

summary of the Constitution’s requirements under the Due Process Clause, and I

agree that the test essentially hinges on the indefinite nature of the detention. See

ante at 28. On the question whether the statutes here, when read as my colleagues

read them, have in fact effected indefinite detentions, I part ways with my

colleagues. For an ever-increasing number of people in the D.C. Jail awaiting trials,

there is only uncertainty.

Without even accounting for new variants of the COVID-19 virus that could

derail the country’s vaccination campaign aimed at herd immunity, 7 we have no

6 Mr. Jordan and Mr. Sharps’s cases will not qualify to be set for trial, as the published plan categorically excludes the offenses with which they have been charged. Notice of Intent to Resume Criminal Division Jury Trials in Felony 2 Cases Previously Set for Trial in Which Defendant is Detained Pursuant to D.C. Code 23- 1322(b) (Jan. 15, 2021), https://www.dccourts.gov/sites/default/files/Notice-of- Intent-to-Resume-Felony-2-Jury-Trials.pdf https://perma.cc/88BE-NVSX. 7 It is not known at this time whether these variants will be resistant to the long-awaited vaccines that only a minority of D.C. residents has been able to access. Anna Gross & Clive Cookson, Brazil Virus Variant Found to Evade Natural Immunity, Fin. Times (Mar. 1, 2021), https://www.ft.com/content/51cf718d-e701- 4292-a9dd-dd36c1b1c5ea https://perma.cc/64SE-VSPM; Carl Zimmer, 7 Virus Variants Found in U.S. Carrying the Same Mutation, N.Y. Times (Feb. 15, 2021), https://www.nytimes.com/2021/02/14/health/coronavirus-variants-evolution.html https://perma.cc/N3BX-VGGP; William Booth & Carolyn Y. Johnson, South Africa Suspends Oxford-AstraZeneca Vaccine Rollout After Researchers Report ‘Minimal’ Protection Against Coronavirus Variant, Wash. Post (Feb. 7, 2021, 4:18 PM), 48

grounds for confidence in the accuracy of the Superior Court’s timeline and do not

ourselves, as judges, possess the scientific expertise to endorse or reject such

optimism. If past postponements are any indication, March 22 may not be the magic

date this time around—the Superior Court’s notice regarding intent to resume jury

trials that day cautions that “[a]ny trial date as well as the number of trials to be set

per week” will be contingent upon the mayor imposing “no further restrictions on

governmental operations” in the District, the approval of the Department of Health,

and the “ability to summon jurors and conduct trials in a manner consistent with

public health and the safety of all participants and the due process rights of the

defendant.” 8 As far as we know, a return to life as it was—and trials as they were—

before the COVID-19 pandemic is itself a “contingent event that might never

occur.” 9 See ante at 29. And if it is not, the repeated proffering of dates that lack

https://www.washingtonpost.com/world/europe/astrazeneca-oxford-vaccine-south- african-variant/2021/02/07/e82127f8-6948-11eb-a66e-e27046e9e898_story.html. https://perma.cc/TQ8H-6PP8; UN: ‘Concerning News’ Vaccines May Not Work Against Variants, AP News (Feb. 8, 2021), https://apnews.com/article/un-news- vaccine-may-not-work-variants-7950427023f7883e0c2d33998aafb279. 8 Notice of Intent to Resume Criminal Division Jury Trials in Felony 2 Cases Previously Set for Trial in Which Defendant is Detained Pursuant to D.C. Code § 23- 1322(b). 9 James Gorman, Potential for New Coronaviruses May Be Greater Than Known, N.Y. Times (Feb. 16, 2021), https://www.nytimes.com/2021/02/16/science/Covid-reemerging-viruses.html https://perma.cc/MPC2-3BS5 (“[Researchers] warned that the possibility of 49

any assurance of an end in sight is not the sort of definiteness due process requires.

See Foucha v. Louisiana, 504 U.S. 71, 81–82 (1992) (noting that the Salerno Court

found the Bail Reform Act “constitutionally permissible” because it “was strictly

limited in duration”); id. at 83 (“In our society liberty is the norm, and detention

prior to trial or without trial is the carefully limited exception.” (quoting Salerno,

481 U.S. at 755)).

“It is during our most challenging and uncertain moments that our Nation’s

commitment to due process is most severely tested.” Hamdi v. Rumsfeld, 542 U.S.

507, 532 (2004). Unquestionably the pandemic has created serious, almost

unimaginable, challenges for the Superior Court and for the people who run the

court. But “the pressing exigencies of crisis” cannot justify “dispens[ing] with

fundamental constitutional guarantees,” id.; see also id. at 529 (describing “the

interest in being free from physical detention by one’s own government” as “the

most elemental of liberty interests”), and the people in jail awaiting trial should not

bear a disproportionate share of the burden of this crisis by enduring a protracted

and effectively indefinite incarceration that exceeds the limited authority of our

detention statute. See Foucha, 504 U.S. at 80 (1992) (describing “[f]reedom from

recombination resulting in the emergence of some new dangerous coronavirus is highly underestimated.”). 50

bodily restraint” as a right that “has always been at the core of the liberty protected

by the Due Process Clause from arbitrary government action”).